THE USE OF "TORTURE" IN INTERROGATION

Maj. Anthony F. Milavic, USMC (Ret.)
19 May 2005

Introduction

"In every war but one that the United States has fought, the conduct
of those of its servicemen who were captured and held in enemy prison
camps presented no unforeseen problems to the armed forces and gave
rise to no particular concern in the country as a whole . That
one war was the Korean War."

Some 50 years later, it is the conduct of U. S. servicemen and women
toward those they have captured that has caused "concern in the country":
the case of LTC West firing a pistol during the interrogation of a detainee
in August 2003, photographs of nude men from the Abu Ghraib prison, reports
of Afghans and Iraqis dying while in U.S. custody, etc. Overarching and
amplifying these events, there has been an almost worldwide accusation
that: "Americans are torturing detainees!" In the arena of public
opinion all these events have been called "torture" even though
many of these acts were of a lesser intensity and should be categorized
as coercion or physical/mental abuse. Accordingly, this essay looks at
these acts as "torture" through the prisms of some legal imperatives,
the effectiveness of torture, why some resort to torture, trained interrogators,
and a closing comment.

Some Legal Imperatives

The United States Congress ratified both the Third and Fourth Geneva
Conventions thereby compelling the U. S. Armed Forces to comply with their
strictures. The Third Geneva Convention, which covers prisoners of war,
contains the following proscription within Article 17:

"No physical or mental torture, nor any other form of coercion,
may be inflicted on prisoners of war to secure from them information
of any kind whatever. Prisoners of war who refuse to answer may not
be threatened, insulted, or exposed to unpleasant or disadvantageous
treatment of any kind." (2)

The Fourth Geneva Convention, which covers the "Protection of
Civilian Persons in Time of War" from the occupying power has
less precise rules on interrogation but Article 31 still bans all "physical
or moral coercion" to obtain information (3).
Soon after 9/11, there was some confusion as to who was a Prisoner
of War and/or protected by these Conventions. That was quickly put to
rest with the 7 February 2002 memorandum "Humane Treatment of al
Qaeda and Taliban Detainees" from President Bush that directs, in
part:

"Our values as a nation, values that we share with many nations
in the world, call for us to treat detainees humanely, including those
who are not legally entitled to such treatment. As a matter of policy,
the U.S. armed forces shall continue to treat detainees humanely, and
to the extent appropriate and consistent with military necessity, in
a manner consistent with the principles of Geneva." (4)

Regardless of where you place the threshold between torture and coercion,
they are both banned by the Third and Fourth Geneva Conventions and anathema
to President Bush's order to "treat detainees humanely."

Effectiveness of Torture

In addition to being illegal, these acts are frequently ineffective and
counter-productive. The Romans threatened the early Christians with crucifixion,
being burned at the stake, or being fed to wild animals in the Coliseum
if they did not reject their new religion and embrace the many gods of
Roman: Thousands chose death. Joan of Arc was tried before an ecclesiastical
tribunal accused of witchcraft and heresy because she claimed to be guided
by divine voices. She was told to admit that she heard no such voices
or be burned at the stake: She was not dissuaded by death. William Wallace,
of Braveheart popularity, was hanged, drawn and quartered because he refused
to swear allegiance to King Edward I. The threat of certain and excruciating
death was ineffective in dissuading these and their deaths had opposite
effects: the slaughter of Christians contributed to the conversion of
Rome; Joan of Arc is widely remembered today while few remember the name
of the French king she served and who contributed to her demise; and,
the death of William Wallace invigorated the Scots to successively eject
the English from Scotland.

This is not to say that coercive techniques always fail to influence
or prompt some action. These techniques have caused men to do as their
abusers wanted them to do or say, and, at times, caused the unintended
death of the detainee; for example,

1) "The barbarous custom of having men beaten who are suspected
of having important secrets to reveal must be abolished. It has always
been recognized that this way of interrogating men, by putting them
to torture, produces nothing worthwhile. The poor wretches say anything
that comes into their mind and what they think the interrogator wishes
to know."

2) Four days after the war started and two days after he was captured,
an American lieutenant was heard broadcasting over Seoul radio on behalf
of the Democratic People's Republic of [North] Korea. He was followed
by others making similar statements and even confessions of using germ
warfare weapons. It wasn't long before a journalist explained what was
happening to them: "Americans are being brainwashed in Korea."
Although these men were not "tortured"--as defined at the
time by the U.S. Army: "the application of pain so extreme that
it causes a man to faint or lose control of his will"--they were
coerced and abused into saying what the Koreans/Chinese wanted them
to say. (6)

3) During the Vietnam War, Americans were, in the most profound sense
of the word, tortured into making confessions of using bacteriological
weapons against the North Vietnamese and other acts considered to be
criminal by the world community: statements the Americans knew were
false.

4) According to the Innocence Project at the Benjamin N. Cardozo School
of Law, Yeshiva University, duress, coercion, and violence (threatened
or performed) have led innocent Americans to confess to crimes they
did not perpetrate. The Project reports that, "33 of the first
123 postconviction DNA exonerations involve false confessions or admissions."
(7)

5) On 27 May 2004, The New York Times reported that on 30 August 2003,
LTC Alvin B. West, an artillery battalion commander, detained an Iraqi
police officer named Yehiya Kadoori Hamoodi for interrogation because
West believed the officer knew about a "plot to ambush him and
his men." West "made a calculated decision to intimidate
the Iraqi officer with a show of force . . . [even though he previously]
had never conducted or witnessed an interrogation." The Interrogation
of Hamoodi, that included hitting him and threatening his life, failed
to produce the desired answers. West then fired his pistol next to his
head. Hamoodi gave West the names of several men who were purportedly
involved in an effort to kill him. One man was picked up and shortly
thereafter released; none of the named men were determined to be involved
in the so-called plot. Later, "Mr. Hamoodi said that he was
not sure what he told the Americans, but that it was meaningless information
induced by fear and pain."

6) According to a 12 June 2004 Navy Times story, two Marines, during
"motion hearings" held on 28 & 29 June 2004, faced charges
in connection with the death of Nagem Sadoon Hatab, a 52-year-old Baath
party member who was being held in a makeshift detention center outside
Nasiriya. Allegedly, Hatab had been struck and kicked on 4 June 2003
and the following day was lethargic and had defecated on himself. On
6 June, he was found dead.

As these examples show, the use of torture and/or abusive techniques
frequently fails to elicit the desired response, at times produces a false
response, and can result in the death of a potential source of information:
A dead source is no source of information!

Why Some Resort to Torture

Practitioners of torture have frequently been described as being antisocial,
bullies or products of a culture of violence. There is evidence supporting
the assertion that even "normal" persons will, under certain
circumstances, resort to the torture or abuse of others; for example,

1) In the summer of 1991, Stanford University conducted a psychology
experiment in prison life. College students that had been screened for
normalcy were broken down into two groups--one of prisoners and the
other guards--and placed in a prison environment for a scheduled two
weeks. According to Stanford University, the experiment "had
to be ended prematurely after only six days because of what the situation
was doing to the college students who participated. In only a few days,
our guards became sadistic and our prisoners became depressed and showed
signs of extreme stress." In other words, people given extraordinary
power quickly turn sadistic. (8)

2) On 1 June 2004, the Washington Post reported that: "On May
1, a U.S. Army investigator took the stand in a criminal proceeding
in Baghdad against one of the seven military police soldiers charged
in the Abu Ghraib prison scandal. There was, he said, 'absolutely no
evidence' that military intelligence officers or the military police
chain of command had authorized the abuse to aid interrogations. 'These
individuals were acting on their own,' said Army special agent Tyler
Pieron, who investigated the case for the Criminal Investigation Division.
'The photos I saw, and the totality of our interviews, show that certain
individuals were just having fun at the expense of the prisoners. Taking
pictures of sexual positions, the assaults and things along that nature
were done simply because they could.'"

"Several US Army Soldiers have committed egregious acts and
grave breaches of international law at Abu Ghraib/BCCF and Camp Bucca,
Iraq. Furthermore, key senior leaders in both the 800th MP Brigade
and the 205th MI Brigade failed to comply with established regulations,
policies, and command directives in preventing detainee abuses at
Abu Ghraib (BCCF) and at Camp Bucca during the period August 2003
to February 2004."

During his appearance before the Senate Armed Services Committee on
8 June 2004, MG Taguba said the root of the problem was, "Lack
of discipline, no training whatsoever and no supervision."

Certainly, torture is not the sole property of loose canons. This technique
is also advocated by those who believe it is the right thing to do. On
21 Oct. 2001, Walter Pincus reported in the Washington Post that FBI agents
were becoming frustrated in their efforts to glean information from terrorist
suspects and said, "it could get to the spot where we could go to
pressure." On 23 Jan. 2002, CBS' "60 Minutes" aired two
Mike Wallace interviews for a segment on torturing terrorists during interrogation-1)
French Maj. Gen. Paul Aussaresses and 2) Harvard law professor Alan M.
Dershowitz:

1) Aussaresses was asked whether he would use torture to force al Qaeda
suspects to talk. He answered in English and without hesitation: "It
seems to me that it is obvious." He is the author of the book,
The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria
1955-1957 where he describes his use of torture against Algerian insurgents.
Aussaresses had no intelligence training and his instruction in interrogation
came from the Algerian Gendarmerie: "They quickly informed me
that the best way to force a terrorist who refused to disclose what
he knew was to torture him." Ironically, he admits, "It
was the first time that I tortured anyone. But . . . the man died without
talking." The book is also replete with stories of summary
executions of those who admitted to being involved with the Algerian
insurgency or those who were fingered by tortured Algerians; he doesn't
mention any effort to confirm an accusation before he executed the accused.
Nevertheless, he justifies the use of torture by saying that it was
instrumental in defeating the insurgents by 1957 even though he admits
many merely withdrew to the Atlas Mountains only to return later to
expedite the withdrawal of France from Algeria in 1962.

2) The self-described civil libertarian, Alan Dershowitz, published
a book in 2002 entitled, Why Terrorism Works: Understanding the Threat,
Responding to the Challenge. In Chapter Four, he calls for the use
of "nonlethal" torture in "ticking bomb" situations.
Unfortunately, he neither tells us how we can be sure that an event
is not imminent nor how we can be sure that the torture applied will
not have a fatal result. On the surface, his recommendation of pushing
needles under someone's fingernails appears to be a nonfatal technique.
But, can we be sure of that in the case of an older source with a heart
problem? As evidence that torture works, Dershowitz describes an event
that took place in the Philippines in 1995. It seems the police captured
one Abdul Hakim Murad after finding a bomb-making factory in his apartment
in Manila. They beat him and broke his ribs, burned him with cigarettes,
forced water down his throat, then threatened to turn him over to the
Israelis. Sixty-seven days later he broke and told of terror plots to
blow up 11 airliners, crash another into the headquarters of the CIA
and to assassinate the Pope. Unsaid here is which of these purported
plots were subsequently confirmed. Also, I find it curious that Dershowitz
would argue for the use of torture in a "ticking bomb" situation
based on a torture-interrogation example that took sixty-seven days
to bring to fruition. According to WO Brian Copeland of the Navy/Marine
Intelligence Training Course (NMITC), Dam Neck, Va., current Marine
Corps interrogation doctrine is that detainee information is highly
perishable and, in a tactical environment, has a shelf life of 24 to
48 hours.

Trained Interrogators

It is not the purpose of this essay to demonstrate the U.S. Armed Forces'
doctrinal techniques of interrogation that have been honed over the years
and are known and used by both military and law enforcement agencies worldwide.
But, I do feel obliged to shine a little light on some alternatives to
torturing and/or abusing detainees. For the curious, I invite you to read
the basic reference for trained U.S. military intelligence interrogators,
FM 2-22.3 (FM 34-52) HUMAN INTELLIGENCE COLLECTOR OPERATIONS. You would
also find illuminating the book: The Interrogator: The Story of Hanns
Joachim Scharff Master Interrogator of the Luftwaffe. This German
interrogator purportedly gleaned information from every one of the American
and British fighter pilots he interrogated without ever resorting to violence.
This is not surprising when you consider: FM 2-22.3 states that direct
questioning "works 90 to 95 percent of the time." Even
Gen Aussaresses admits in his book, "most of the time I didn't
need to resort to torture, but only talk to people." Trained
interrogators, of course, know this--the operant words here are, "trained
interrogators."

Another precept that is foremost in the mind of a trained interrogator
is that: the interrogator does not know what the source knows. Think about
it! Isn't that the reason the interrogation is being conducted in the
first place? This point has profound implications for those who are untrained
and/or inclined to use coercion. The following is a partial extract from
the 11 July 2004, New York Times Magazine article entitled, "Memoir:
Interrogation Unbound," By Hyder Akbar, as told to Susan Burton.
This narrative demonstrates what can happen when someone untrained in
interrogation-especially this interrogation precept--attempts to interrogate
a detainee:

It was a Wednesday afternoon in June 2003, and Abdul Wali was being
interrogated by three Americans at their base near Asadabad, Afghanistan.
I was interpreting. At the time, Wali's family guessed his age to be
28; he was 10 years older than I was. I'm 19 now. I grew up mostly in
the Bay Area suburbs, but since the fall of the Taliban, I've been spending
summers in Afghanistan, working alongside my father, Said Fazel Akbar,
the governor of Kunar, a rural province in the eastern part of the country.
It's a strange double life. I sometimes stumble into situations in which
I'm called upon to act as a kind of cultural translator. It's a role
that can leave me tense and frustrated, or far worse: I came away from
Wali's interrogation feeling something close to despair.

On June 18, 2003, Abdul Wali visited my father's office. He knew
that the Americans wanted to question him about some recent rocket attacks.
He told us he was innocent, and he said he was terrified of going to
the U.S. base, because there were pervasive rumors that prisoners were
tortured there. My father told him that he needed to go, and he sent
me along to reassure him.

A half-hour later, Wali and I were sitting across from three men
I then knew only by their first names: Steve, Brian and Dave, who proved
to be David A. Passaro. It was more than 100 degrees in the small room,
and above us, a fan whirred wildly.

The interrogation started casually enough. In his friendly Southern
accent, Brian dispensed with the nuts and bolts: have you been in contact
with Taliban? Were you Taliban? Then the subject turned to Wali's recent
visit to Pakistan.

"How long ago were you in Pakistan?" Brian asked.

Wali looked confused, and I doubted he'd be able to answer. People
in Kunar don't have calendars; most of them don't even know how old
they are.

"You don't have to give a specific date," Brian said.
"Was it two, three days ago? Two, three weeks ago? Two, three months
ago?"

"I don't know," Wali responded. "It's really hard
for me to say."

The Americans exchanged glances. I prodded him: "Can you at
least say a week or two weeks or a month or two months, or something?"
But he couldn't. For him, as for many of his countrymen, time unfolded
forward-there was no way to go back later and try to fix it in a structure.

"I just, I go to sleep, I wake up and there's a next day,"
he explained.
"I feed myself, I go to sleep and there's a next day."

The Americans weren't buying it. Dave took over the questioning.

He asked Wali where he had been 14 days earlier, on a night when
three rockets were fired at the American base. "How could you not
know where you were on the night three rockets were fired?" he
said. Wali explained that his nights were often punctuated by explosions.

Even seated, Dave seemed enlarged by anger. His demeanor felt put
on, as if he were acting the role of a fearsome interrogator (especially
in comparison to Brian, whose Southern hospitality softened even his
grilling of this suspected terrorist). Dave fixed Wali with an unrelenting
stare. Wali returned a nervous smile.

"Translate this to him!" Dave exploded: "This is
not a joking matter! Don't smile!"

"I'm sorry, I didn't mean to offend him," Wali replied
anxiously. "It's very hard for me. I can't understand anything
he's saying. He was staring at me, and I didn't know what to do. What
should I do?" he asked me.

I wasn't sure how to react. Dave's behavior was unpredictable. Only
days earlier, he and I had a friendly conversation about his little
son, who could say his ABC's and count from 1 to 20 and back down again.
But now he was acting as if he was full of rage. "If you're lying,
your whole family, your kids, they'll all get hurt from this,"
he threatened.

As I translated, I started to feel as if Dave's words to Wali were
my own, and all I wanted to do was stop saying these things to him.

"Your situation's getting worse," Dave warned. How was
I supposed to tell that to Wali, when my father had assured him that
coming to the base would make everything better?

Nobody was behaving the way they would with a regular translator;
both sides added comments meant only for me. In one ear, I had Wali
pleading: "I'm innocent, I'm innocent." In the other, I had
Brian dismissing his account: "That is impossible." What was
I supposed to do, argue or agree?

At some point, I announced that Wali was making personal, emotional
appeals to me, and that the other translator in the room-a local Afghan
employed at the base-should take over. Then I quietly tried to share
my largest concern with Brian. "I'm not going to translate for
this guy," I whispered. "Look how he's acting."

As the interrogation continued, I was relieved to be on the sidelines,
but still, it wasn't easy to watch Dave browbeat Wali. Finally the questions
stopped, and Wali stood facing the wall as the Americans patted him
down in preparation for detention. "Is there anything you want
to give to your family?" Dave asked him.

The question terrified Wali. "No, no," he stuttered.

I approached Wali and, to calm him, put my hand on his shoulder.

"Just say the truth," I told him, trying to sound normal.
"Nothing is going to happen if you just say the truth." Then
I walked out of the room, promising myself that I'd come back and check
up on him.

He died before I got the chance.

On June 17 of [2004], a federal grand jury indicted C.I.A. contractor,
David A. Passaro, in connection with his assault. Passaro, the first
civilian to be charged in the investigation of prisoner abuse in Iraq
and Afghanistan, is accused of beating Wali using his hands, his feet
and a large flashlight.

[Also, according to the 29 July 2004 Fayetteville (NC) Observer,
Passaro is a former Special Forces medic and "was working at the
U.S. Army Special Operations Command as a 'medical intelligence research
analyst' when he was arrested."]

Closing Comment

The Korean War experience prompted President Dwight D. Eisenhower to
promulgate the Code of Conduct for Members of the Armed Forces of the
United States by executive order. Training in the Code followed and America
has been proud of the conduct of its sons and daughters while in captivity
ever since.9 Conversely, the conduct of American servicemen and women
on the opposite side of the captivity equation have now caused concern
in the country as evidenced by the examples cited in this essay. The common
thread connecting the above examples was the lack of training in the handling
and interrogation of detainees. The conduct of those untrained personnel
resulted in: an apparent failure to glean valid intelligence information;
potential intelligence sources dying while in their custody; and, America's
citizens and their detractors being embittered with stories that the U.
S. Armed Forces practices "torture." In this information age
where TV cameras broadcast warriors' every action and warriors themselves
post digital photos of intimate scenes on the Internet, the untrained
are an even greater liability to the United States then ever before. It
is perplexing to realize that this is not a new "Lesson Learned";
it is just one that some have not yet implemented. Years ago, General
Douglas MacArthur, observed:
"In no other profession are the penalties for employing untrained
personnel so appalling or so irrevocable as in the military."